Administrative Law – Richards – Fall 2018

Chapter 7

How would you use Skidmore and Hearst in argumentation over the applicable standard
for a court to review the agency’s finding in a given case?

Chevron then comes along as a way for the court to decide where on the Skidmore and
Hearst continuum the case falls on.

How do you use the two Chevron steps in arguing a case?

What is step one in the court’s analysis in Chevron?

What is step two in the court’s analysis in Chevron?

How does Chevron deference fit with the political control of agencies?

We read FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (U.S. 2000) as a
counterpoint to Mass v. EPA and Chevron. This is a case where the statute looks clear on
its face and appears to support the agency action, but the court ultimately finds that it does
not mean what it says.

Does the plain language of the Food and Drug Act appear to give the agency
jurisdiction over tobacco?

Why does the Food and Drug Act seem to require that tobacco would have to be banned
if it was under the authority of the FDA?

What does it mean to say that the court used a Chevron step zero in this case, i.e., what
did the Court look to before it analyzes what the plain language means? How would you
use this technique in other cases?

We read Mass v. EPA as an example of how the courts apply Chevron, as an introduction
to greenhouse gas (GHG) regulation, and as an example of how to use a petition for
rulemaking as a device to get into court to challenge an agency’s regulatory position.

What was the role of the petition for rulemaking in this case?

How did the court use the same type of analysis from Brown and Williamson to
determine congressional intent?

How did the court handle the standing issues, in particular redressability?

The key to Chevron is the assumption that an ambiguous statute implies that the Congress
meant to leave the policy choice of action under the statute to the agency.

Why did the court in King v Burwell not want to leave the decision about the ACA to
 the IRS?

What does it mean when the court says a decision is too important to leave to the
agency? (Can a statute be unintentionally ambiguous?)

Post-Chevron

What was the agency action in Mead?

How much process and finality are involved with the Mead action?

How did the court explain why this led to a different result from Chevron?

What is the general principle in Mead that you can use in other cases?

What are the Barnhart Factors for evaluating agency persuasiveness?

How do you use the series of cases we have discussed on from Skidmore to Barnhart as
tools for arguing either side of any statutory interpretation case?

What is the key to a successful argument by the agency?

How can an agency bind a regulated party without using a notice and comment regulation,
while limiting the avenues for judicial review? (Hint - Public Citizen v. DHHS)

In this situation, what are the only grounds for attacking the provisions?

What is the party's recourse if it does not like the terms?

How is this used by federal agencies without regulatory powers to get states and other
parties to do what the feds want?

Agency interpretation of its own regulations

What does Auer/Seminole Rock tell us about deference to an agency’s interpretation of

its own regulations?

How has the world of rulemaking changed during the decades since Seminole Rock?

How does this reduce the ability of an agency to abuse the Auer deference?

Does going first matter? (Brand X)

Assume that a court interprets a statute before an agency promulgates regulation under
the statute.

What would the court need to say about the interpretation to preempt a subsequent
regulation by the agency that would conflict with the court’s interpretation?
 Assuming that the court did not say this, must the court defer to the agency if the
agency goes against the court’s original ruling when it promulgates the regulation?

Agency conflicts

In areas where more than one agency has legal authority over a regulated activity,
which one, if any, does the court defer to?

Opinions in ligation

How do you analyze the deference issue when an agency first raises an interpretation
during litigation?

When might an agency’s views during litigation might be entitled to some deference?

Lawyering statutory interpretation cases

If you represent the agency, how do you present your arguments to persuade the court
to support the agency interpretation?

If you are opposing the agency, how do you present your arguments against deference
to the agency?

An agency promulgates a rule that is appropriate for most workplaces, but one industry
segment cannot comply because of the structure of their workplaces. (Assume the
agency must conform its rules to the workplaces, rather than force employers to
restructure their workplaces.)

Can the agency avoid having the court finding the rule is arbitrary and capricious
by promising not to enforce the rule against these employers?

Challenging a rule can be expensive – what would you advise your client if the
agency makes this offer?

What would you want from the agency?

Congressional Direction to the Agency

The Americans with Disabilities Act is very detailed and does not leave the enforcement
agencies much room for discretion in setting standards in many areas.

Why would Congress write the law this way?

How does this effectively limit the court's deference to the agency?

In contrast, many laws gave very broad authority to agencies with few specific details.
This gives the agencies broad discretion.

What are the reasons, good and bad, why congress might not want to give specific
 direction to agencies?

How does this broaden the court's deference to the agency? (Think Chevron)

What is the limit on broad delegations of authority, i.e., what does the court need
the legislature to provide to be able to properly review agency action?

Reviewing facts versus reviewing law

Agencies find facts through adjudications and through their research in putting
together the record to support rulemaking.

Analogizing to Article III trial practice, why do appeals courts view review of facts
differently from the review of law?

Putting aside the various standards of review, are appeals courts more likely to defer to
determinations of facts or of law?

What is a hybrid question of law and fact?

How do the courts review these?

How do you use the differing standards of review to support your arguments pro or
con in a hybrid case?

Reconciling ALJs and Agency Decisionmaking

When a hearing officer is overruled by the agency, how should the reviewing court treat
the ALJ's opinion?

What does the agency need to do if it wants to overrule the ALJ's finding?

When are the ALJ's findings most persuasive to the courts? When the agency wants
to overrule the ALJ on this sort of evidence, such as the credibility of a witness,
what would the agency need to show in the record?

Are agencies in Louisiana able to overrule ALJs in the central panel?

Building the Record for Judicial Review

Before Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) committed to
agency discretion was seen as meaning essentially no judicial review.

What did the court require the Secretary to do before the court would defer to his
decisionmaking?

What does an agency have to do after Overton Park to justify its decisions?

How does this requirement for a complete record become hard look review?
 What is the court taking a hard look at?

How do hard look and deference fit together, i.e., what does the agency have to show
in the record before the court gets to the deference decision? (Think about Overton
Park.)

What is the general rule on amending the agency record when it is on appeal to the
courts? When is the court most likely to allow the record to be supplemented by the
agency?

What does the case withdrawing seat belt regulation (Motor Vehicle Mfrs. Ass'n of U.S.,
Inc. v. State Farm) tell us about procedure for withdrawing a rule?

Why did the court require this process, rather than just allowing the rule to be
withdrawn without a full record?

How is the seat belt case (Motor Vehicles Manufacturers Assoc. v State Farm) the
logical result of Overton Park?

How could you argue that State Farm is a hard look case?

What does Fox tell us about how you might argue that the standards should be
different for rules that 1) rely on the same facts and analysis as the previous rule,
but change the policy choice versus 2) change the facts or analysis from the previous
rule.

What is the procedure for a non-rule rule to be binding, i.e., to preempt state action?

What is the analysis if the agency makes a finding that no regulation is necessary on
the energy use of kitchen appliances, and that finding then preempts states from
passing their laws or regulations on the subject?

Is this a final agency action that can be reviewed?

How would you argue that this requires notice and comment, and, if so, what would
need to be published in the record?

Factual basis for regulations

The OSHA bloodborne pathogens rule requires universal precautions in all health
care workplaces

Dentists said that there was no specific factfinding about the risks in dentistry.

How did the court resolve the allegation that it was arbitrary and capricious to
make a rule covering dental practice without providing specific factual
information about dentists?

The same bloodborne pathogens rule requires the employer to control several risks
 in the workplace. Home health agencies, which are covered by the rule, argue that
they do not control the workplace since it is the patient’s home.

How does this make the rule arbitrary and capricious as to them?

Can the agency cure this promising not to enforce the rule for home health care
agencies?

What would you argue as the home health care agency lawyer when presented
with this offer?

Forcing Agencies to Act

What are the limits on mandamus that make it of limited use? (Remember our previous
discussion of mandamus.)

How does 706(1) provide an APA remedy?

Why is it hard to prove that an agency action has been unlawfully or unreasonable
withheld - how is the choice to act a discretionary function?

What might be valid reasons for the agency to not act?

What legal process got the plaintiffs into court in Mass v. EPA to try to force the
agency to act?

Relying on Agency Advice

When can you claim equitable estoppel for relying on agency advice?

Can you get damages for relying on bad advice?

What can it be a defense for?

How does the formality of the advice matter?

Example of when you can rely?

Can you rely on an agency mistake about the law or regulation?

Thought question - jurisprudentially, why not?

What is collateral estoppel?

What does a party have to show to prove that an action is collaterally stopped?

What if the agency has lost on the legal point against other parties in a different circuit
– does that bind it in all circuits? (Assume no nationwide injunction.)
 Why might an agency do this?

Non-Acquiesce

If an appeals court disagrees with an agency’s interpretation of law in an adjudication,

can the agency relitigate the same interpretation in other adjudications with different
parties?

If an appeals court finds that the agency has promulgated an improper rule, can the
agency keep using the rule in other circuits?

Does the basis for overruling the regulation matter?

If not, why is it different from the court overruling adjudication?

What is the effect of a nationwide injunction?

End of Document